Morton attorney: How John Bradley fought to keep Michael Morton in prison

As primary season heats up, Williamson County District Attorney John Bradley has been repeatedly forced on the campaign trail to defend his role opposing DNA evidence and the release of exculpatory evidence under open records during habeas proceeding challenging Michael Morton's false conviction. But Bradley's statements have strayed so far from the facts, says Morton's attorney John Raley, that the Houston lawyer felt compelled to issue a corrective "Open Letter to Williamson County." In it, he details how and why Morton remained in prison around 2,400 extra days because Mr. Bradley fought testing using every possible means, all the while denigrating Morton in comments to the press. Bradley for a time even opposed Morton's exoneration, a fact he repeatedly obfuscates, after DNA testing pointed to Mark Allen Norwood as a suspect!  Here's the remarkable letter in fulll, it speaks for itself:

Open Letter To Williamson County:

I have resisted becoming involved in the upcoming election for District Attorney of Williamson County, because I believe that the decision should be made by local citizens. However, I have become increasingly concerned about statements made by Mr. Bradley regarding the Michael Morton case, and now feel the need to set the record straight. In doing so, I am not speaking on behalf of my dear friend and pro bono client for the last eight years, Michael Morton, nor am I speaking on behalf of my co-counsel with the Innocence Project who fought with me so long for DNA testing. I am speaking personally, and am not endorsing any candidate.

The world now knows that Michael is, and always has been, innocent.  His dear wife was murdered in their home while he was at work, just as he has always maintained.  When Michael was formally exonerated last fall, Mr. Bradley called to apologize to me and asked that I convey his apology to Michael. I hoped at the time of the call that Mr. Bradley had learned from this experience and had changed. However, I am concerned from reading recent statements by Mr. Bradley during the campaign that he is retracting his previous admission of responsibility for decisions that kept Michael in prison an extra six years and eight months. 

On February 11, 2005, we filed our motion for DNA testing of, among other things, a bloody bandana found behind the Morton home after Christine’s murder. Such testing would cost the State of Texas nothing, because the Innocence Project offered to (and later did) pay for it completely. In 2005, and in virtually every brief and argument since, in state trial and appellate courts and in federal court, we contended that the bandana was found behind the house along the likely escape route of the murderer. We also pointed out that the bandana (1) may contain the blood of Christine Morton, (2) may also contain the DNA by blood, sweat, or skin cells of the murderer, and (3) the DNA of the murderer may lead to a hit on the national databank of known offenders. [Note: we did not know at the time that the DA’s trial file from 1987 contained a description of a stranger seen the days before the murder, driving an old van, and walking around behind the Morton house – exactly where the bandana was found. Michael’s 1987 trial defense counsel have signed affidavits that they never were made aware of this key document and other critical investigative documents that would have been used in Michael’s defense.] Contrary to Mr. Bradley’s statements during the campaign, there are no valid chain of custody issues or contamination issues regarding the bandana.  The bandana was seen by law enforcement on the very spot it was found by Christine’s brother and immediately handed to law enforcement for safekeeping. Following protocol, it would have been placed in a separate bag. There is no evidence otherwise. The blood, one day after the murder, would have dried. But the DNA was there, waiting like a time capsule to be tested.

I am not a criminal lawyer, but I come from a law enforcement family. I sought the advice of my father, a retired prosecutor, and he recommended that I call Mr. Bradley on a personal level to see whether he would agree to the testing, or at least not oppose it.  I made several such efforts, even driving from Houston to Georgetown for a meeting with Mr. Bradley and my co-counsel from the Innocence Project, but all such efforts were rebuffed. 

Instead of agreeing to a simple test, that can only reveal the truth, that would be free to the State, Mr. Bradley spent countless hours and taxpayer dollars opposing the testing every way he possibly could. It cannot reasonably be denied that if the murder happened in 2005, the bandana would have been DNA tested as part of law enforcement’s efforts to identify the murderer. The technology was not available in 1987, but it is now. There is no good reason not to allow DNA testing to reveal the truth – whatever it is. When I asked Mr. Bradley why he was fighting so strongly against DNA  testing, he said “it would muddy the waters.” I responded, “Mr. Bradley, truth clarifies.”  I tried to explain to Mr. Bradley the many flaws in the State’s presentation at trial against Michael, but Mr. Bradley was not interested in hearing about it. I tried to hand him the two lie detector tests Michael passed shortly after his wife’s murder, and he refused to look at them.

During this time, Mr. Bradley publically belittled our efforts, saying the bandana was “irrelevant”, that we were “grasping at straws”, and that we were searching for a “mystery killer.” He wrote letters to the parole board opposing a parole for Michael (who had by that time spent 23 years in prison) because Michael had not “accepted responsibility for the murder of his wife by mercilessly beating her to death.” He told the media: “The public might want to remain skeptical of a defendant who to this day doesn’t accept responsibility.” Around this time, Michael was informed that he would be likely paroled if he would “show remorse for his crime.”  

Michael Morton is one of the finest men I know.  He is a man of honor and integrity. He refused to lie to get out of prison. He said “All I have left is my actual innocence. And if I have to stay in prison the rest of my life, I am not giving that up.” 

When we finally obtained testing of the bandana, after many years of strenuous opposition by Mr. Bradley, the highly sophisticated technology revealed (1) Christine Morton’s blood, (2) the DNA of a man who is not Michael, which when run through the databanks of known offenders (3) led to a direct hit on Mark Allen Norwood, who has a long criminal record in several states for, among other things, breaking and entering residences and assault with intent to murder.   Thus, the DNA testing Mr. Bradley fought against  so long not only proved Michael is, according to the State of Texas, “actually innocent” --  it also led directly to the arrest and indictment of Mark Allen Norwood, who is now awaiting trial for the murder of Christine Morton. 

Even after the hit on Norwood, Mr. Bradley’s office continued to fight against Michael’s exoneration, and Mr. Bradley publicly discounted the bandana’s importance. Our office and the Innocence Project informed the Travis County District Attorney that a cold case in Austin of the murder of Debra Jan Baker, who was killed in her bed exactly the same way as Christine, might be linked to Norwood because he lived nearby at the time. They investigated and found important evidence, which they shared with Judge Sid Harle who was, at that time, presiding over the Morton case. Mr. Bradley could no longer oppose Michael’s exoneration, and a few days later backed down and agreed to Michael’s release.

I am hopeful people remember that when an innocent man is convicted of murder and wrongfully incarcerated, that means that the real murderer is allowed to go free and commit other crimes.  Resistance to an honest search for the truth through DNA testing only prolongs the time that the the real murderer (or rapist, or other form of serious criminal) may be at large.   People like to talk about being “tough on crime.” I propose, rather, being “smart on crime” – making sure that the guilty party is the one who is caught and eventually convicted.  That’s what keeps our streets safe, and is what prosecutors should strive for. Although Mr. Bradley did not try the case that wrongfully sent Michael to prison and let the murderer go free, he is largely responsible, in my opinion, for adding the last six years and eight months to Michael’s tragic story. For nearly 2,400 additional days, the cell doors clanged shut on an innocent man. At one time Mr. Bradley accepted responsibility for his role. I hope he has not changed his mind about that.  

Truth and justice are more important than winning an election.

John W. Raley

Via the Wilco Watchdog.

Travis DA race: Should we learn lessons from false convictions, or even acknowledge them?

There are many reasons to be cynical about modern elections, but one functional benefit they provide - at least in seriously contested races - is to force incumbents to defend their practices, raise up alternative approaches, and generally provide an opportunity for public debate about the minutiae of a job that normally is never the subject of media coverage nor even public conversation. In that vein, the Austin Chronicle has an interesting back-and-forth interview/comparison with Travis County DA candidates, incumbent Rosemary Lehmberg and challenger former Court of Criminal Appeals and District Judge Charlie Baird. (See the Chron's earlier coverage of the race.) The first item on the Chron's list is of issues "Wrongful Convictions," and here I immediately fall out with the incumbent DA, who announces that:

We actually had three that were brought to us, and we did DNA testing, and two proved to be wrongful identifications and one confirmed guilt. And there wasn't much publicity about the one that was confirmed, because it was just confirmed. ... But it was after the two mistaken identification deals ... that we began looking at, eventually, 400 old cases on our own to determine whether biological evidence was present that could be tested but wasn't. And we did not find any exonerations. We retested about six cases and did not find any exonerations.

Baird argues that the department has not taken the lessons from wrongful convictions to heart:

She says there have been three DNA cases, and that two of them were exonerations. I don't know what changes they made as a result of that. ... When there is a plane crash, everybody stops and they go out there and they figure out why did this plane crash, and let's make sure it never happens again. It seems like to me that they don't do that in the criminal justice system. They don't say, "Well, my God, why did this happen in Morton?" Or Ochoa and Danziger?

While I agree with the need to re-evaluate internal practices when false convictions occur, to me Lehmberg's response raises an even more troubling concern. As is often the case when interpreting political rhetoric, perhaps more important than the incumbent's actual statement is what she left unsaid. The DA doesn't say which cases she's talking about and Grits can't tell from the context. She said the exonerated two were based on false eyewitness IDs, for example, so that wouldn't include Christopher Ochoa and Richard Danziger. So she seems to be downplaying and understating her office's problem with false convictions.

In addition, she's seemingly not including the Yogurt Shop defendants among the exonerated. There, DNA evidence obliterated the state's theory of the crime, causing the convictions to be overturned and the defendants to be released. If Lehmberg is not including those defendants in the totals, that means she's clinging to the preposterous unindicted co-ejaculator theory involving some mysterious fifth perpetrator unforeseen by the prosecution's theory nor referenced during the lengthy interrogations that led to the overturned confessions. (Perhaps she's only including cases that came to the office while she was sitting as DA, but she was First Assistant for a dozen years before that and a key decisionmaker on the appeals and writs in question.)

So my concern is less that the office hasn't learned any lessons from the two cases that they grant resulted in false convictions, but more that she seems to remain in denial over false convictions in the Yogurt Shop and Pizza Hut murder prosecutions that gives me pause about her re-election.

Baird, by contrast, has consistently been on the cutting edge of the notion that false convictions could be rooted out while still ensuring the guilty are convicted, standing up as a leader on the issue as far back as the late 1990s both while serving on the Court of Criminal Appeals and afterward, leading Grits to recently call him "virtually the father of Texas DNA exonerations" for his role in the Roy Criner case.

Lehmberg's somewhat blindered, bunker mentality IMO doesn't stem from some nefarious desire to falsely convict anyone but from the tunnel vision that comes frpm working as a prosecutor in the same office for nearly forty years (which is how long she'll have been there when this contested next term ends). My sense is Charlie Baird will be more willing to try new things and move more aggressively to improve processes when errors happen, if only because he'll have no personal, institutional stakes in defending the status quo, a reflex which from time to time seems to stymie the incumbent.

This is one of several issues that to me clearly delineates the candidates and makes me come down on the side of Judge Baird. Every politician has flaws and like Craig Watkins in Dallas, I won't agree with him on every issue. But Judge Baird would enter the job unfettered by decades of institutional baggage that IMO  limits the incumbent's vision, not to mention possessing a more profound appreciation for the implications of DNA exonerations for the prosecutorial profession. I don't know if Democratic primary voters will understand that distinction, but to me it's an important one.

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.

Central Texas races hinge on public perception of prosecutorial influence

According to recent campaign disclsures, challenger Jana Duty has "lapped" incumbent William County District Attorney John Bradley in fundraising. She had $115,000 on hand as of the most recent reporting  period compared to $35,000 for the incumbent, reported the Austin Statesman.

That's a substantial lead, but it's probably not TV money and not enough to make the race a slam dunk. If you want John Bradley ousted as District Attorney, you might consider helping Ms. Duty add to that lead. Or, obviously, if you'd prefer to see Williamson County voters return Mr. Bradley to power, donate to his campaign (though honestly I couldn't tell you how even after closely examining his website). This is the homestretch and this final month of campaigning - more than all that's gone on before - will determine the outcome of this extraordinary race.

I've never before wished to live in Williamson County, but it'd almost be worth it just to get to vote in this primary. (I'll leave readers to guess Grits' preference.)

Meanwhile, in Travis County the incumbent, Rosemary Lehmberg has a more typical fundraising edge over challenger Judge Charlie Baird, but the former District and Court of Criminal Appeals judge has been campaigning harder than the incumbent DA, judging both from outward appearances and campaign expenditures. In a weird, belated, low-turnout primary two weeks after city elections, theirs will be the most prominent race on Travis County Democratic ballots. If Baird can raise sufficient funds in the homestretch to be competitive on television, my take is that he's got a real shot at an upset.

Though Grits likes and respects both candidates, I've said before I prefer Charlie over Rose in this race for one simple reason: Inertia. Lehmberg joined the Travis DA's office in the '70s, was the first assistant for long-time DA Ronnie Earle's final 12 years, and was elected over a group of much less experienced candidates than Baird as Earle's heir apparent. Throughout most of her time there, Travis County was considered the most progressive DA's office in the state, though today that mantle has been usurped further up I-35 in Dallas. That much departmental history makes her understandably but regrettably resistant to change. Sometimes it seems as if her institutional investment in how they've always done things gets in the way of improving the system she works in or learning from obvious mistakes.

I'm thinking, for example, of the questionable confessions contradicted by DNA evidence in the Yogurt Shop murders. (The Texas Court of Criminal Appeals' Criminal Justice Integrity Unit heard a presentation on the case at an event they sponsored to educate themselves and the public on the subject of false confessions.) How a DA reacts to exonerating DNA evidence tells you a lot about their mindset. They can admit a mistake, apologize, and continue the search for the real killer(s), perhaps even revisiting other confessions obtained by the same detective (in Austin's case Hector Polanco, who  notoriously, tragically extracted a false confession from Christopher Ochoa as well as the Yogurt Shop defendants) or they can spin out new theorems about some unindicted co-ejaculator, a hypothetical fifth mystery suspect supposedly present with the accused but accounted for neither in the questionable confessions nor the prosecution's theory at trial. Grits was disappointed the incumbent at first chose the latter path before finally, grudgingly recommending charges be dismissed. Also, I've been  dissatisfied that local jail diversion strategies haven't been more successful or always available to defendants with appointed counsel. I don't know that I'll agree with Judge Baird in every instance, but he has the experience and mettle for the job, and I'm confident he'd be more open to change than the incumbent.

Speaking of the Yogurt Shop murders, the prosecutor in that case, Efrain De La Fuente, is running to replace retiring Travis County District Judge Mike Lynch presiding over felony cases. De La Fuente is opposed by a long-time Austin defense attorney David Wahlberg, who told the Austin Statesman:

that most of the felony District Court judges had worked as prosecutors before taking the bench. He said it is dangerous to have prosecutors and judges who are too alike.

"I don't mean to say they are bad people," Wahlberg said, "but ... if you have spent your career as a hammer, everything looks like a nail. I feel like we need a different perspective."

That's certainly my view, and  the main reason Grits supports Wahlberrg in the race. Indeed, whether primary voters agree with that sentiment - that an aggressive prosecutorial mindset exerts too much influence over a bloated and inefficient justice system - may determine the outcome of both this and the other two races described in this post, and arguably the Harris County DAs race as well.

Challenger surging in hotly contested Williamson County DA's race

Grits has no firsthand knowledge of Williamson County District Attorney race, but judging from endorsements and fundraising, incumbent John Bradley appears to be on the ropes in his primary battle against insurgent challenger and current County Attorney Jana Duty. The headline in today's Statesman story on the race calls it "unparalleled in intensity," declaring the race more heated than any election in living memory according to Williamson courthouse watchers.

Police unions remarkably began to line up against Bradley after he had to retract ill-informed, ham-handed comments about civil service at the Cedar Park PD. He said a difference between him and Duty was he opposed them getting it, but Cedar Park voters had already authorized it. (Ironically, this is an issue where my views jibe more closely with Bradley's than the unions'; his ignorance of basic facts, IMO, is a greater indictment of a candidate than the politically incorrect view he expressed criticizing civil service.) In any event, the array of law enforcement interests stepping up to endorse Ms. Duty over the incumbent has grown quite impressive.

Source: janaduty.com.

The challenger has proven to be a diligent fundraiser and has a substantial lead in that regard, though neither candidate appears to be raising TV money so far, which must be spent in the relatively expensive Austin market:

Duty said in February that she had raised about $113,000, but she has declined to say how much she has raised since.

Duty has a history of successful fundraising. When she ran against an opponent in the 2004 primary, she raised about $47,000, winning with 63 percent of the vote.

By comparison, Bradley raised more than $27,000 for his 2002 primary battle, according to campaign finance reports.

Bradley said last week that he has about $68,000 and expects to raise an additional $10,000 to $20,000 by election day. Bradley has attacked Duty's fundraising, noting that it has come in part from her own staff and from loans to herself, but Duty said she has a broad base of supporters, including residents and attorneys who have left the Bradley camp.

The race is far from over and I'd still give the incumbent a 50/50 chance to remain in office, mainly because of incumbency advantages and because even Duty's greater fundraising totals appear too low to ensure voters all enter the polls understanding what's at stake. Even so, Bradley's reputation has been battered - in some cases thanks to vicissitudes of fate beyond his control, but in most cases as a result of his own missteps and misapplied ambitions - and he'll need more resources than he's projecting he'll have to pay for sufficient communication to overcome it.

The practical reason money matters in elections, and the reason it's often viewed in political and legal circles as almost a proxy for "speech," is that the MSM offers quite poor coverage of most elections, which are treated as in this story more as a horse race than a choice between public policy visions. Not only is campaign coverage poorly structured, it's also infrequent. We might see one more story featuring the race in the Statesman before election day, for example, but likely no more. Most information voters receive about candidates comes from paid advertising. When candidates in third-or-fourth tier races like this one can't afford campaign communication in sufficient volume to actually get voters' attention - be it direct mail, door hangers, radio and TV ads, etc. - voters go to the polls utterly ignorant, as opposed to mostly ignorant, which is a terrific contributor to high reelection rates among incumbents. (Voter attention confoundingly skews toward presidential, senate, congressional and legislative races much more than local contests.) So Duty's fundraising edge matters a great deal, and so does keeping and extending it as the end of the campaign nears. If she actually raised enough money to go on TV with an attack message or deliver several rounds of targeted direct mail, it could drive a stake into the heart of the incumbent. Unless Mr. Bradley somehow pulled a financial rabbit out of his hat, he simply wouldn't have resources to respond.

For those interested, here's Bradley's campaign website (he also has an active Facebook page) and challenger Jana Duty's campaign site.

What impact of Texas legislative turnover on criminal justice reform?

The Austin Statesman's Tim Eaton has a political analysis of the likely makeup of the Texas House next year, projecting that Republicans will lose seats in the lower chamber but still hold onto 60% or more and ideologically are likely to become more conservative. Further, between unusually large turnover in 2010 and a large number of retirements, there will be more relatively inexperienced legislators in the Texas House, D and R, than any time probably since the aftermath of the Sharpstown bank scandal. Reports Eaton:

Inexperience will also contribute to molding the House's personality.

With 38 freshmen in 2011 and maybe 30 newbies in 2013, the 2013 session could have the most inexperienced collection of members in more than 30 years, Jillson said.

Rep. John Smithee, a Republican from Amarillo with 27 years of experience in the state House, said he can imagine a situation in which there will be more first-term and second-term lawmakers in the House than he has ever seen.

Smithee said it will be difficult to replace some of influential members, who will be leaving for a variety of reasons — personal, professional and political considerations.

"The biggest impact will come from the loss of lots of institutional knowledge," he said. "It's a big loss."

Some Republican legislative leaders who will depart include: Reps. Burt Solomons, R-Carrollton, and chairman of the Redistricting Committee; Will Hartnett, R-Dallas; Jerry Madden, R-Richardson, chairman of the Corrections Committee; Beverly Woolley, R-Houston; Warren Chisum, R-Pampa; and Jim Jackson, R-Carrollton, chairman of Judiciary & Civil Jurisprudence Committee.

The Democrats are losing relatively few important members, such as the soft-spoken Rep. Pete Gallego, D-Alpine, who chaired the House Criminal Jurisprudence committee, and Rep. Scott Hochberg, D-Houston, an expert on school finance. The result of the Democrats remaining largely intact could be greater influence for the party, Acuña said.

But the exodus of long-serving and powerful members also represents opportunity for younger members to fill important committee chairmanships.

On the criminal justice front, of special concern is who fills the chairmanships at the Corrections and Criminal Jurisprudence Committees. On Corrections, Jerry Madden earned a national reputation as a co-author with Sen. John Whitmire of Texas' 2007 probation reforms, while as chair of Criminal Jurisprudence, Pete Gallego was the House sponsor/author of several key innocence reforms including Texas' new eyewitness ID statute. Who replaces those men will tell us a lot about the direction those committees might take, and by extension what might be possible in 2013.

There's a pretty impressive record of criminal justice reform since Texas has been under Republican control, so there's not inherently anything to fear for reformers from the Legislature's continued partisan tilt. More concerning, arguably, may be legislators' relative inexperience. As a general principle, a legislative body awash with inexperienced members bodes poorly for criminal justice because every politician knows as a default  it's safe to run as "tuff" on crime. It takes time to learn the byzantine, interconnected reality of the justice system involving a vast alphabet soup of different local, state and federal actors. There are also many other issues much higher on voters' priority lists, so these subjects mostly aren't coming up in campaigns. Thus, once  at the capitol, inexperienced legislators can become paralyzed, willing to vote for enhancements and new crimes because it looks "tuff," but fearing to reform a system they don't understand yet. By the time a legislator has spent several sessions on the Corrections Committee, for example - hearing testimony, having been lobbied by prosecutors, police unions, chiefs, Sheriffs, not to mention judges, cities, counties, and reformers, delving into the details of recurring, longstanding political squabbles - it becomes (a little) easier to apply one's own principles to specific, real-world problems. That's impossible to do when folks don't even understand what the institutions are and how they work together, plus our short, biennial sessions mean there's not much time for learning on the job.

OTOH, depending on the issue, it's also possible a wave of new, ideologically committed conservatives could take on criminal justice issues that haven't received much focus. At the end of the 2011 session, freshman Rep. David Simpson made Fourth Amendment rights at TSA searches in airports an issue and used grassroots conservative clout to muscle the provision further through the process than anyone thought possible. In my experience, Fourth Amendment issues are ripe for attention by conservatives who really do want government out of our private lives. Much of the grass-roots base supports it, even if the establishment types in the GOP continue to kowtow to the tuff-on-crime crowd.

Moreover, the 2013 Texas Legislature faces a yawning budget gap that will have every pol in the building, freshmen and sophomores included, scratching for budget savings in ways that, on criminal justice, potentially benefit reformers looking to scale back mass incarceration. Unlike education and healthcare, prison spending is one of the few areas the public won't howl like scalded cats in the face of large spending reductions. Indeed, the Lege was mostly praised last year when Texas closed its first prison unit ever since the founding of the Republic. There aren't many other parts of the budget you can point to where cuts earn praise from the public instead of disapprobation. So if the type of draconian cuts threatened at the beginning of last session actually came to fruition, ironically prisons may be one of the politically safest places to cut

Of course, in the real world the Lege can't reduce prison spending significantly without changing incarceration policies. The Lege on paper reduced the budget for prison healthcare last year by around $100 million over the biennium, then TDCJ almost immediately began paying $5 million per month extra while they renegotiated healthcare services, an amount greater than the Lege had cut. Real savings must come from actually reducing the burden on government - bolstering less expensive community supervision while reducing high-cost incarceration to the greatest extent possible. There are an array of possible policy mechanisms to achieve that goal, but with so many new members and so much of the leadership in flux, it's difficult to say whether the Lege will embrace reform or, as happened on so many issues last session, just kick the can further down the road with band-aids and accounting gimmicks.

Bottom line, oversimplifying only a tad: If Small-Government Conservatives act on their principles on criminal justice, generally reformers win. When Big-Government Conservatives side with Big-Government Liberals - which historically has happened much more often - we get penalty enhancements and tuff-on-crime demagoguery. With so much in flux, my crystal ball is hazy regarding which outcome to expect. Texas government finds itself, both politically and financially, in an extraordinarily uneasy transition moment, with such questions largely held hostage by dynamics which are utterly unrelated to public safety and effective criminal justice policy.

Jail dominates Harris County Sheriff budget whether candidates acknowledge reality or not

Big Jolly has posted a hagiography candidate interview featuring Louis Guthrie, the GOP frontrunner to challenge Adrian Garcia for Harris County Sheriff, who Jolly declares is "a natural born leader," adding that he "couldn’t blame [Guthrie] if he thought I had a man-crush on him."

With Jolly temporarily blinded by his love-goggles, Grits wanted to hone in particularly on the utterly unrealistic discussion of the budget from the challenger. Ironically, his stances mirror positions taken and promises made by Garcia when he first ran for Sheriff, most of which crashed upon the rocky shores of economic reality almost immediately after he took office. Here's the segment (in full) of BJ's post on the budget:

About the budget, I’ve mentioned before (here and here) that most of the primary candidates think that the budget must be increased. Mr. Guthrie was a bit more nuanced in our discussion than he was in the forums – during the forums, he stated that his relationship with Harris County Commissioners Court would result in a larger budget. I asked him point blank if that meant that the Court was playing partisan politics and not giving Sheriff Garcia the resources he needed. His answer was no, that the budget under Garcia had grown and would continue to grow. What he meant was that the Court would see that he was prioritizing the resources better than Garcia and they would be more apt to give him what he asked for versus them seeing that Garcia was building up his command staff and not boots on the ground.

A glaring example of what Sheriff Garcia has done was noted in the Houston Chronicle today in a report by Anita Hassan:

Also, county budget cuts have suspended testing in the auto theft division for now. But overall, testing can help to solve more crimes as well as prevent them, Wilson said.

“If you catch one of those guys (car burglars), you can prevent dozens of them over a period of months,” he said. “They are out there every single day driving those parking lots in every part of this city and county looking for targets. If you get one of them off the streets, there’s no telling how many you may have prevented.”

I asked Mr. Guthrie about this report and he replied:

“Touch DNA is just one of many exciting new techniques now used to help solve crimes that were previously relegated to the “closed with no investigation” file.  While the current Sheriff has created most of his own budgeting problems, cutting funding for programs that help put burglars behind bars is a poor choice for the taxpayers.  Garcia could easily trim fat from his bloated command staff and instead put dollars to work solving crimes and putting more boots on the ground.  That would have a real impact of improving public safety in Harris County.” Louis Guthrie

We talked about the budget for quite some time. I was impressed with his detailed knowledge of how the department works, down to the supplies issued each deputy. I was a bit surprised by this because his highest rank in the department had been Lieutenant and budgeting is typically done by the Captains. He told me that he took it upon himself as a Lt. to break down the numbers passed down by his Captain because he wanted to be certain that taxpayer money was being utilized efficiently.

Two things jump out at Grits here. First is Guthrie's utterly unrealistic portrayal of the budget, pretending that demoting a few senior commanders will allow him to put more "boots on the ground" at a time when the county is paying millions annually in overtime to staff the jail (which is the 800 lbs. gorilla dominating the Sheriff's budget). I replied thusly in the comments:

Hey Big Spender!! So Garcia’s budget is too big, says Guthrie, but he would increase it more? I call BS.

In reality (i.e, outside the campaign trail), the Sheriff’s Office is primarily about running the jail. Garcia cited all the same data and made all the same promises about more patrols when he first ran, then once elected he had to confront reality and had to spend all his budget cushion on overtime for jailers to meet minimum state standards. What “efficiencies” will Guthrie install to change that situation? Nada. Command salaries are a drop in the bucket compared to overtime. If you or anybody believe Guthrie won’t be subject to PRECISELY the same budget dynamic, you’ve got another think coming. Such campaign promises are completely detached from reality.

Voters may not recall, but Sheriff Garcia rode into office four years ago promising to boost patrols in unincorporated parts of the county, then discovered after ascending to the job that his main responsibility is managing the jail and every extra dollar he could lay his hands on had to go to pay jailers' overtime. If Guthrie replaces him, four years from now he'll face a challenger making the same BS criticisms and promises because what he's suggesting is not real and cannot happen given current budget realities. These are not partisan issues, nor even ideological ones. They are difficult, practical economic and management questions on which neither Guthrie nor any other candidate may legitimately claim higher ground. Like Garcia when he made the same promises in 2008, either Guthrie doesn't understand the big picture or he's just blowing smoke up voters' collective ass.

Finally, BJ references an interesting story out of the Houston Chronicle on using "touch DNA" to solve property crimes, criticizing Garcia for not using the technology for car burglaries after the Commissioners Court cut the program's budget. I understand identifying something voters don't like (car burglaries) and blaming one's opponent for it is a typical campaign tactic, but the critique misunderstands who controls the budget strings at the Sheriff's office. The county commissioners court makes that call, not him. Besides, it's difficult to overstate the extent to which using touch DNA in nonviolent offenses would quickly overwhelm crime labs and property rooms. As Grits wrote in January, "The advent of 'touch DNA' and the expansion of DNA evidence to nonviolent offenses like burglary mean the near-term growth potential for DNA examiners may be limited only by how much state and local governments are willing to pay for them." In Harris County, for the foreseeable future, those demands for funds must get in line behind overtime spending for jailers. Changing the party designation of the Sheriff from D to R wouldn't alter that dynamic in the slightest.

RELATED: Here's Charles Kuffner's interview with incumbent Sheriff Adrian Garcia.

Keller tries to derail Keith Hampton's candidacy; Mark Bennett to challenge Hervey as Libertarian

It's a rare day when the Texas Court of Criminal Appeals makes the news for anything but the occasional overzealous death penalty ruling or suborning some cockamamie brand of junk science, but this week brings two tidbits of electoral political news that merit attention: Republican Sharon Keller levied a challenge with the Democratic Party to the candidacy of her presumed opponent Keith Hampton, aiming to keep his name off the November ballot. And Mark Bennett, the Houston criminal defense attorney who blogs at Defending People, signed up as a Libertarian candidate to run against Judge Barbara Hervey in the fall.

Let's take these two in order of importance: Since her fellow CCA judge Larry Meyers decided at the last minute not to challenge Sharon Keller in the GOP primary (after previously announcing he would do so), eliminating Hampton in the courtroom instead of the ballot box would relieve voters of any option whatsoever for replacing Keller for a fourth term as Presiding Judge. Given that, here's hoping Keith Hampton got his act together on his signatures before the filing deadline and his candidacy is approved. See Hampton's press release responding to Keller's gambit.

As for Mark Bennett (visit his campaign site), Grits must confess disappointment that he signed up to run as Libertarian when there's no Democrat running against Republican Barbara Hervey. Bennett understatedly declared that "the Libertarian candidate in a race for a seat on the Court of Criminal Appeals faces a steep uphill battle." In reality, as a practical matter, the Libertarian candidate has entered into a political suicide pact. Bennett himself demonstrates why in a  post laying out vote results from 2008, the last CCA race coinciding with a presidential election:

Place 3:

Republican Incumbent	3,940,954
Democratic Candidate	3,477,426
Libertarian Candidate	215,427

Place 4:

Republican Incumbent	4,035,683
Democratic Candidate	3,336,944
Libertarian Candidate	249,921

Place 9:

Republican Incumbent	4,709,086
Libertarian Candidate	1,041,499

Your mileage may vary, but these downballot races barely run campaigns and do not typically spend money on paid media. Very few voters can even name a member of the Court of Criminal Appeals, much less meaningfully evaluate their record. And the MSM are lucky to devote one story per election to the race at any given outlet, with political reporters generally understanding as little about the court as the general public. As a result, CCA vote totals derive almost purely from party identification.

Let me step back for a moment to make clear that I respect Mark Bennett tremendously, both as an attorney (by reputation) and as a writer, and that's speaking as someone who may have read every single word he's written, or close to it, virtually since the day he began Defending People. He's a great guy and I think he'd make a terrific judicial candidate. Now let me proceed to chastise him, though merely on grounds of political naivete and perhaps a wee bit of selfishness, not ill intent.

(Grits should add that, despite my various policy differences with Judges Hervey and Keller, neither woman has ever been anything but extraordinarily gracious and polite toward me. Judge Keller seems like an authentically sweet person on a personal level, though admittedly she's never wanted to chit chat much, while I genuinely enjoy Judge Hervey's company. The fact that I'd like to see the voting bloc responsible for decisions like this one and this one broken up on the court doesn't mean I hold any personal animus toward either of them.)

Bennett tells us he chose to run for the Court of Criminal Appeals because the slot against Barbara Hervey was the only one statewide where Libertarians hadn't lined up a candidate. Well, guess what? That means that was the single race where - before Bennett filed as Libertarian - a candidate who seriously wanted to unseat Hervey and begin voting and writing opinions in her stead could have filed as a Democrat and had the best chance in more than a decade of unseating an incumbent statewide Republican.

Libertarian votes are protest votes - the electoral version of "none of the above." If there were no Libertarian candidate, most of those votes would go to the non-incumbent, which in Texas means to the Democrat, or else those folks just wouldn't vote at all. I've always inferred from the large Libertarian vote in CCA races that there's a disproportionate amount of dissatisfaction with the Court of Criminal Appeals among voters under Sharon Keller's leadership, or else why would the Libertarian totals get so high when a Dem is absent? In other races where Rs run unopposed by a D, L totals are typically much lower.

So Bennett's candidacy in Grits' estimation represents not a cause for celebration but a missed opportunity to unseat a member of the court faction who, with Judge Keller, has systematically slanted the court's jurisprudence far to the pro-prosecution end of the spectrum. That said, Judge Hervey - both in several notable opinions and her work with the Criminal Justice Integrity Unit - has distinguished herself as more thoughtful and slightly less hard-line than Sharon Keller, but in the scheme of things the two women's records aren't all that different, particularly compared to where a Mark Bennett might come down on the issues.

Bennett nobly announces that "I don’t want a single vote from anyone who can’t explain to me what my job will be if I’m elected." Translation: He doesn't actually want to be elected. Why would he, since he grants elsewhere that "getting elected would entail a brutal pay cut"? Sure, as Bennett declared on Defending People, this is "an office in which [he] could do real and lasting good." But the harsh truth is if the goal was to get on the court and do good instead of just talk about it, he'd have run as a Democrat or in the GOP primary.

Running quixotic campaigns for office to "educate" the public about this or that subject or to "send a message" is about as ineffective a tactic imaginable, substituting a single candidate's personal ambition for the policy goals of whatever ideals one hopes to champion. The only reason to run for office is to try to win, because power comes with winning and elections are how we decide who gets to wield it. That's all it's about. If you want to "educate" people, write on your blog or even better, use the money you were going to spend on a campaign on paid advertising to promote your message. More people will receive it that way.

Grits has opined for years that the CCA races (and to a lesser extent, the Texas Supreme Court) are the Texas elections where Dems have far and away the best chance of unseating a statewide Republican. Bennett notes that "in the closest 2008 Court of Criminal Appeals Race there was more than a 200,000-voter difference (that is, the result would have been different only if more than 200,000 voters had [switched their votes]) between the winner and second place." That's not an insurmountable margin, particularly compared to other statewide races, if a serious candidate were to run an actual, well-resourced campaign.  If there were no Libertarian candidate and most of those L protest votes went to the D challenger, the race tightens up considerably. In an R v. L matchup, though, the risk of success is a null set. Bennett's lotto numbers have a better chance of coming up.

Keith Hampton, however, has a puncher's chance to defeat Sharon Keller if he can make it onto the ballot, particularly in a year where conservative voters could stay home if Mitt Romney is the GOP presidential nominee. That's where the real action lies, to the extent it's possible for any Dem to win a statewide race in Texas at this historical juncture. Bennett's candidacy will be fun for his readers - and I hope for him - but regrettably inconsequential.

Challenger doubles John Bradley's fundraising as rivals slug it out for Williamson DA

A pair of local news stories update us on the status of the Williamson County DA's race, where challenger Jana Duty has more than doubled incumbent John Bradley's fundraising total. The story this morning by  the Austin Statesman's Claire Osborn opens:

In the Republican primary campaign for district attorney, Williamson County Attorney Jana Duty had raised more than twice as much money as her opponent, incumbent John Bradley, according to the most recent campaign finance reports.

Duty raised $83,211.09, and Bradley raised $38,604.06, according to campaign finance records filed at the end of December with the Texas Ethics Commission. Duty said last week that she has since raised $30,000. Bradley said he has raised $20,000 since the beginning of January and expects to raise another $20,000.

Osborn points to Duty's successfully luring even self-described friends of Mr. Bradley like Austin attorney Roy Minton into her camp:

Austin criminal defense lawyer Roy Minton said Bradley is a longtime friend but that he is supporting Duty in this campaign.

"I believe that John has not shown the concern that I would like to see prosecutors have for young people that get into difficulties and need to be rehabilitated and continue in society without carrying with them a conviction or penitentiary time," Minton said.

Minton contributed to Bradley's 2002 campaign, campaign records show. Filings from July show that Minton's law firm also contributed $500 to Bradley's current campaign. Minton gave $500 to Duty's campaign, reports show.

Duty supporter Mark Brunner previously worked as an assistant district attorney under Bradley and is now a criminal defense lawyer in Georgetown. Brunner said he trusts Duty and said she "fosters a sense of a search for the truth."

Some criminal defense attorneys have said prosecutors under Bradley had offered defendants one-day deadlines for deals in their cases rather than allowing defense attorneys access to evidence, such as videos, that would help them make a decision for their clients.

Access to case files has become easier for defense attorneys since the Michael Morton case, Brunner said. Bradley did not prosecute the case but refused for six years to allow DNA testing on a piece of evidence for Morton, who was wrongfully convicted of the death of his wife, Christine Morton. Morton spent 25 years in jail before he was released in the fall; another man recently was charged in connection with Christine Morton's death.

Conversely, Your News Now Austin has an interview with John Bradley by Alana Rocha in which the incumbent takes his best shots at the challenger (and pretends his Forensic Science Commission nomination was shot down by "liberal Democrats" when Republicans drove the nails in the coffin). My own, admittedly biased estimation is that Jana Duty's much-ballyhooed troubles with the state bar - which largely stem from competing criminal and civil roles of the County Attorney's office - don't rise to the level of concern as John Bradley's politicized stewardship as DA, including but not limited to his aggressive opposition to possible innocence claims. Williamson County voters in the GOP primary, of course, must make their own judgment.

Fundraising is a tell-tale metric in politics, however, and usually the most reliable indicator after polling as a predictor of who will win an election. So for a challenger to "lap" the incumbent, as the Statesman headline writer put it, even an impartial observer (and Grits won't pretend impartiality) would have to conclude that John Bradley appears to be on the ropes, with most of the momentum so far on Jana Duty's side.

Still, even if both campaigns meet their fundraising projections, we're not talking about a lot of money given Austin-market TV prices, so much depends on a) how effectively the campaigns spend what they have, b) the few, limited remaining opportunities for earned media (Bradley may need some to alter his downward spiral), and c) whether Bradley's local establishment allies decide to hang him out to dry. I don't  know who benefits more from the likely postponement of the primary date: Normally I'd say the challenger, but it may be Mr.Bradley. Judging by the campaign's fundraising totals and projections, he may need some luck and all the time he can get to turn things around.

Mexican presidential elections and border security

What makes the escalation of the drug war in northern  Mexico so disoncerting - and also explains the impotence of the military and the federales to confront major drug cartels in that country - is that the fundamental causes of their sad situation are economic and political, not necessarily related to the success or (more often) failure of the justice system.

On the political side, high-level corruption defines this conflict in the eyes of many Mexicans I know. Under stewardship of the "PRI," which was the ruling party from the time of the revolution until 12 years ago, political favor doled out smuggling opportunities to various criminal organizations who, the theory goes, were allowed to operate in exchange for (relatively) low levels of violence. Once the PRI lost power, though, the infrastructure controlling the beast fell apart - first in Juarez and then Nuevo Laredo and beyond - corruption factionalized by region, and criminal gangs began openly competing for turf. By the time President Calderon sent the military in to take over security in northern Mexico, the government had become merely one of several competitors for political power. Think of it from a citizen's standpoint: If you want to remain safe, should you pay your taxes to the government or the criminal gang running a protection racket in your community? It's a non-trivial question.

On the economic front, NAFTA helped spawn a legitimate middle class in Mexico that didn't exist before, but it also depopulated rural areas, driving thousands of families, including  many with relatively little education or skills, out of agriculture and into an urban proletariat where the country's legitimate economic base was ill-prepared to absorb them. Such desperate poverty and lack of opportunity, combined with rational personal security decisions, underlie the cost-benefit analysis of many Mexicans who side with the drug smugglers against the government (or else waffle tentatively in the middle, waiting to identify the likely victor). This story about the massive drought in northern Mexico - for which I almost feel guilty after the bout of rain we've had -  makes me think the economic end of the equation may only get worse in the short term.

With military and police enforcement seemingly unable to stem the violence (it's declined in Juarez but expanded elsewhere in Mexico), and the Mexican public understandably opposed to direct US intervention, that pretty much leaves a poltiical solution as the only viable path forward for the troubled state. And that makes this summer's presidential elections in Mexico (replacing Calderon's successor for the next six years) more important for Texas' "border security," arguably, even than the US presidential race. In any event, the three-candidate field is now complete and it's a virtual guarantee any debates on "border security" will be more substantive and interesting than any we're seeing in the (endless?) GOP contest for US president, which should be refreshing in and of itself.

John Bradley named '2011 Worst Prosecutor of the Year'

Your Winner: 2011 Worst Prosecutor of the Year, John "Marty" Bradley

Over at The Agitator, Williamson County DA John Bradley edged out an extremely competitive national field to win Radley Balko's 2011 Worst Prosectuor of the Year Award based on a reader poll. As one of Radley's Agitatortots commented, "although the award is given for a year, it is effectively a lifetime achievement award." Indeed. Well earned.

Meanwhile, Grits feels compelled to point readers to this hilarious video clip of a scene from a WWII film in German which somebody subtitled with biting dialogue drawing on themes from the Michael Morton exoneration. Normally Grits disdains Hitler references on the web, deferring to my college pal Mike Godwin's dicta regarding the uselessness and disrespectful nature of such comparisons. However, this piece doesn't compare Bradley's actions to those of Hitler's, which is the usual Godwinian trope. Instead, it uses the scene to explore the emotional state of a megalomaniac in free fall. Anyway, it made me laugh.

On a more serious, related note, last week the Texas Tribune interviewed Michael Morton's attorney John Raley about the case, and published excerpts in video and transcript form. And Wilco Watchdog is going through old John Bradley posts from the District and County Attorneys user form and finding lots of controversial opinions expressed that don't always jibe with his comments to the MSM.

Bradley's GOP primary opponent, Williamson County Attorney Jana Duty, has been racking up law-enforcement endorsements and this week received the endorsement of the former Williamson County DA Ed Walsh, who preceded Ken Anderson and John Bradley in the office. A reader from Williamson County emails to say, "There are bandanas appearing on his signs all over the county. People are really sick of him and no longer scared to speak out."

What a difference a year makes! This time in 2011 Bradley was on top of the world, with many anticipating that by the end of the year his long-time patron Governor Perry may even appoint him to the Court of Criminal Appeals. But first the Texas Senate rejected JB's nomination as chair of the Forensic Science Commission, then the Michael Morton exoneration splashed his and Ken Anderson's names across the national press as poster children for indifference toward valid innocence claims and alleged prosecutorial misconduct. Now, not only is appointment to Texas' high criminal court a pipe dream, he might not even win reelection in Williamson County. Grits remains flabbergasted by Bradley's eye-poppingly rapid downfall, which will reach truly epic proportions if he actually loses the April primary. I'm sure the DA himself must be stunned at the development.

Battle of the yard signs heating up in Williamson County

In Williamson County, vandals are leaving reminders on John Bradley's yard signs of the District Attorney's role delaying Michael Morton's exoneration by opposing DNA testing of a bloody bandana for years on end:

Via the Wilco Watchdog

Ouch! Grits doesn't condone vandalism, but you gotta admit that's a poignant image, borne of a dark humor. For anyone familiar with the story, little more need be said, but Wilco Watchdog says most of it anyway.

Meanwhile, speaking of yard signs, the Watchdog reports that attorney Adam Reposa has made up hundreds of these yard signs targeting Williamson County District Judge Ken Anderson, who prosecuted the Michael Morton case and failed to turn over exculpatory evidence to the defense counsel or the court.

Who'da thought? The battle of the yard signs in Wilco is heating up.

UPDATE (Dec. 28): More from KXAN-TV.

'Bradleyland': Anatomy of a Meltdown?

Having in a past life worked as a professional opposition researcher in more than five dozen campaigns, I've had the opportunity over the years to watch more than my share of politicians melt down under pressure, both my own clients and opponents, during heated campaigns. And there are signs that's what's happening with Williamson County DA John Bradley, judging from this TV news report from KVUE, which I saw via the Wilco Watchdog. There we find a bizarre claim by Bradley that his electoral opponent, County Attorney Jana Duty, initiated the pending grievance against him at the State Bar, which he went on to deny even existed ("not a grievance but a complaint on a piece of paper which he says came from Jana Duty"). In fact, Jana  Duty did not file the grievance. As Grits reported here, it was a woman named Julie Oliver from a group called the Texas Coalition for Lawyer Accountability. See their press release.

The Watchdog sees this odd divergence from the facts as evidence that John Bradley's "Road to Damascus" moment, as Grits called it in this post, may be short-lived:

Grits reported a few weeks back a story on John Bradley’s election year transformation. It was titled “On the Road to Damascus: The Conversion of John Bradley?” One line from the post stated “Any such optimism regarding Bradley's newly announced conversion, though, should for now remain measured. He’s got a long record, and it will take more than a few words of humility to get everyone to believe that he’s had some road to Damascus moment.'"

Bradley was also quoted as saying “It would be very easy I think for me to get upset, bitter, and just react to all of that stuff but I’ve never really approached things that way.”

It appears Bradley’s road to Damascus moment just hit a dead end and he has exited back to “Bradleyland.”

The Watchdog adds that "Sources close to Bradley have stated that he is in complete 'panic mode' and is 'desperate' to salvage any remaining hope in being re-elected." This faux pas certainly sounds like desperation to me. I'd have thought JB was smarter than to just begin flailing and making stuff up. Issuing unfounded attacks you'll inevitably have to retract isn't the way to make up ground if the incumbent DA hopes to salvage his reelection chances between now and the April 3 primary.

Challenger's polling says John Bradley vulnerable in Williamson County primary

Williamson County DA John Bradley has drawn a primary opponent - incumbent County Attorney Jana Duty - in a campaign that appears likely to center around the Michael Morton exoneration and Bradley's role in fighting DNA testing for twenty years and opposing release of exculpatory evidence to the defense. The Texas Tribune has an interview with Duty regarding her challenge here. Duty decided to run after conducting a poll of GOP primary voters, she said, leading her to believe Bradley could be beat. The told the Trib:

It's going to be a competitive race, because he has name recognition. He's well known and in some circles well respected.

I recently did a poll, a survey, to see how the people out in the general public feel about the job that he's doing. Do they echo the concerns that are being echoed in the courthouse? And what I found is that they do. They are concerned. I think a lot of people want to see change, and I don't believe they see John Bradley the way he sees himself.

So that was encouraging to me that with the proper message, getting the truth out about the way that office really runs, that he can be beat.

Duty has some of her own baggage, but of quite a different sort than Bradley's. She's been in a big feud with the good-ol' boy crowd at the county commissioners court, which hired an outside attorney over her objections - ironically the attorney who was the second chair prosecutor at Michael Morton's original trial. The State Bar upheld a complaint against Duty for revealing information she learned in executive session of the commissioners court. But the reason she did so stems in part from conflicting roles: She was attending an executive session as attorney for the commissioners court, but she is also a prosecutor. The information revealed related to what she believed was a criminal offense.

Bradley will inevitably attack Duty over the state bar reprimand - indeed, in the Trib story he's already begun - but her revealing secret information because she believed a crime has been committed is quite a polar opposite issue to Bradley's woes. By comparison, Bradley opposed DNA testing in the Morton case for two decades, mocked Morton for seeking to prove his innocence, and fought to keep information secret that would ultimately exonerate an innocent man and lead to the capture of an alleged killer. Grits prefers a prosecutor who broke a rule to expose corruption over one who manipulated the rules to cover up mistakes and misconduct. Anyway, there's an extent to which Duty's reprimand stems from a fundamental tension that exists between the role of a County Attorney as adviser to the commissioners court and her role as prosecutor of crimes. Those duties, Duty discovered, sometimes conflict.

While there's no other coverage of Duty's nascent campaign yet, at least that I could find, here's the text of an email Grits received this morning announcing her candidacy:

Williamson County Attorney Jana Duty announced her intentions today to challenge District Attorney John Bradley in the March 6^th Republican Primary election. Duty said she is challenging Bradley because she believes the citizens deserve a D.A. who understands that his/her job is to seek justice. 

“Unfortunately there is a cloud hanging over the District Attorney’s office,” Duty said. “John Bradley represents all that is wrong with our criminal justice system today. Instead of seeking justice, Bradley aggressively fought against DNA testing for a man who was wrongfully imprisoned for over two decades for murder. The whole time the real killer remained on the loose committing additional crimes. Bradley has also repeatedly refused to prosecute his buddies at the courthouse for their blatant violations of the law. Worse still, he reduces roughly 25% of his felony cases to misdemeanors annually, and passes them off to my office. Some of those cases involve child predator offenders which I find reprehensible.  These are not the actions of a tough prosecutor, but instead are the actions of a self-serving politician who cares more about his statistics than seeking justice.  That’s why I am running for District Attorney.”

Duty has served as the Williamson County Attorney since 2005 where she prosecutes misdemeanor and felony crimes. During her tenure in office, she has more than doubled the amount of protective orders obtained for victims of family violence, saved millions of tax dollars through innovations and efficiencies, and has implemented checks and balances to insure government transparency. Duty has also earned a reputation for taking on the “good old boy” system at the courthouse, a reputation she embraces. 

Duty continued, “I make no apologies for being an advocate for the people of this county.  If that makes me unpopular with the courthouse insiders, so be it.  My pledge to the people of Williamson County is to bring honesty and integrity back to the D.A.’s office, to see that everyone is treated evenly and fairly under the law and to continue fighting to protect our families as I have done as County Attorney. We need a D.A. who will put the public interest above his own political career and that of his friends.”

Duty’s public service continues a family tradition that goes back nearly two centuries.  Jana Duty is a direct descendant of Joseph Duty, one of Stephen F. Austin’s “Old Three Hundred” settlers, who received a title to a league of land in Texas from the Mexican government in 1824. Eventually he settled with his family at Webberville in Travis County. Duty also had four ancestors who fought in the Texas Revolution, including two who participated in the final victorious battle at San Jacinto. In fact, the Duty family has had at least one family member fight in every conflict that Texas has ever been a part of. 

Duty is a graduate of the University of Texas at San Antonio and the St. Mary’s University School of Law.  Prior to becoming a prosecutor, she was a high school English teacher. She and her husband, Daniel, are the proud parents of three children and three grandchildren. They make their home in Georgetown.

“The implications of this campaign go well beyond me and my family,” Duty concluded. “I hope the entire community will rally around our cause and send a strong signal on March 6^th that business-as-usual will no longer be tolerated.  It’s time to start a new era in the District Attorney’s office, and that fight starts today.”

 

To find out more or to join the campaign, please visit www.JanaDuty.com .

The Trib's Brandi Grissom called Bradley "a giant figure in Texas politics," but that may overstate things: He's an influential figure in legal circles, no doubt, but politically he lost his only ever competitive race - for the Court of Criminal Appeals back in the '90s - was appointed to his current spot by Rick Perry, and has never faced a serious challenger until now. Duty, by contrast, appears quite serious: She's coming to get him.

Now we find out if Bradley the media bully can back up his tough-guy image on the campaign trail standing on his own two feet as opposed to on the shoulders of this or that political patron. Can he raise money? Does he know how to run a campaign or employ consultants who do? Will voters really prefer him when they have a choice? Has the Michael Morton case damaged him beyond repair, or will voters believe his road to Damascus schtick? Stay tuned. We'll find out next spring.

MORE: Check in later at the blogs Wilco Watchdog and Eye on Williamson County, both of which I'm sure will be covering Duty's announcement soon.

Two candidates against Judge Sharon Keller must unleash attack dogs to win

Photo via US Marines' official Flickr acount

The most interesting statewide political race in Texas next year that no one's talking about are twin challenges to Judge Sharon Keller on the Texas Court of Criminal Appeals, both from within the GOP by one of her colleagues, Larry Meyers, and in the general election by criminal defense attorney Keith Hampton. Here's Meyer's campaign website and here's Keith Hampton's, along with a recent campaign email from the Austin Democrat. Hampton had originally announced he'd run against rookie incumbent Judge Elsa Alcala, but switched races in order to challenge Keller (or Meyers if he upsets her in the primary).

Judge Keller, the self-styled, "pro-prosecution" judge, has so much baggage coming in it'd be hard to know where to attack first. The findings of facts against her by the Commission on Judicial Conduct were damning and provide ample fodder for campaign attacks. (Her punishment was overturned as illegal but the findings of fact on the merits remained untouched in a circus-like tragicomedy that embarrassed the court and the state.) Keller was also fined by the Ethics Commission $100,000 for failing to disclose a vast web of financial entanglements. (See the ruling [pdf].)

Even more than those dark moments, though, many of her opinions and dissents contain jaw-dropping pro-government assumptions that could be mined for anti-populist material that would make any good Tea-Party type cringe. Just as Governor Perry's greatest political achievement has been to maximize power over state agencies through appointments of political allies, creating a (relatively) strong executive where Texas historically had a weak one, Judge Keller's principal achievement as the CCA's Presiding Judge has been to oversee (and arguably principally author) an expansionist accumulation of government power by law enforcement and prosecutors over nearly two decades. A comprehensive vetting of her opinions by a campaign researcher would yield lots of attack fodder. But these campaigns must undertake that work, then use the information to construct and deliver political attacks: That's the piece that I'm not sure is going to happen, though there's still time.

I'd be happy to see either challenger unseat Judge Keller. To borrow a phrase from Judge Michael McSpadden, speaking recently of Harris County DA Pat Lykos, Keith Hampton and I "are not close, and in fact probably don't like each other," but he'd be a welcome breath of fresh air on the court if he pulled off the longshot upset. Judge Meyers probably faces shorter odds than Hampton at unseating Keller, but so far he hasn't run much of a campaign, that I've seen. He's been on the court forever and in many respects his record as judge isn't much better than Keller's. But he'd surely be a less ideological and polarizing a figure, and if he runs a smart, well-funded campaign he stands a puncher's chance to beat Keller in a primary.

That's just what it is, though: A puncher's chance. And as a political-consultant friend of mine likes to say, "you don't win a fistfight without throwing any punches." Judge Keller is surely the betting favorite to win reelection next year as I write this. If either of these men wants to beat her, they're going to need to attack, hard, and put significant resources behind those attacks. Otherwise the race will garner no attention nor interest amidst the 7-dwarves in the GOP presidential primary and a (theoretically) competitive US Senate race for Kay Bailey Hutchison's seat on the ballot in March. And in the November election, of course, the presidential race will drive turnout and (if history is any guide) drown out discussions of tertiary races like this one.

Judicial races are generally sleepy affairs, but if one or preferably both of these challengers don't bring out the attack dogs, Sharon Keller will skate under the radar to reelection and another six-year term, despite all the embarrassment and divisiveness she's brought to the court.

Judges, legal experts rebut union critique of Lykos crack-pipe policy

At the Houston Chronicle today, Brian Rogers has an item ("Crack policy puts Harris DA at odds with police") on the debate between Harris County DA Pat Lykos and local police unions over charging low-level drug users with "possession" for residue on a crack pipe. His report confirms Grits' assessment last week that the unions and their hand-picked DA candidate Mike Anderson made a political misstep by making this moderate and widely supported policy the centerpiece of their Lykos critique. For starters, by foregrounding an issue where Lykos agrees with the majority of local GOP judges, they get quotes like this one from Judge Michael McSpadden rebutting the unions' extremist stance:

State District Judge Michael McSpadden has presided over Houston's criminal cases since 1982. In that time, he said, the "War on Drugs" has been lost and he has changed his mind about his "get tough on crime" stance. He urges a policy of treatment and second chances for addicts.

"Pat Lykos and I are not close, and in fact probably don't like each other, but she's right about this," the veteran jurist said this week. "Almost everyone's in agreement except, I guess, the police unions."

McSpadden said he, not Lykos, has led the charge to change how these trace cases are handled.

"No one respects law enforcement more than I do, but they're wrong about this," McSpadden said. "I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs."

Hear, hear!

Encouragingly, the reader comments under the Houston Chronicle story were, with few exceptions, overwhelmingly supportive of Lykos' stance and critical of the unions. Given the usual bent of Chronicle commenters, I found that surprising, but it confirms my sense that the issue the unions and Anderson chose to portray the incumbent DA as "soft on crime" will at best fall flat and potentially even backfire.

MORE: From Drug War Rant.

Vote for me and I'll enact policies that raise your taxes! An unlikely issue for the GOP primary.

In what was pretty clearly an orchestrated one-two punch, this week six Houston-area police unions issued no-confidence votes against Harris County DA Pat Lykos just before their new candidate darling, former District Judge Mike Anderson, announced his candidacy for DA yesterday, running against Lykos in the GOP primary. Houston attorney/blogger Murray Newman had written Tuesday that, while he had no personal knowledge, "there are a lot of prosecutors and police officers right now who are dreaming of a Mike [Anderson] Christmas." Apparently they got their gift early.

What's unfortunate, bordering on absurd, is the issue the unions and Anderson have chosen as their main attack on Lykos (maybe it polled well): "They were critical of Lykos' policy, announced in January 2010, to bring misdemeanor charges in cases where the drug residue is less than one-100th of a gram." In other words, they want more tax dollars spent on police and jail staff to arrest and house more people on penny-ante paraphernalia charges. Of course they do. They are police unions.

Lykos' new policy finally brought Harris County in line with what every other large urban county in the state had been doing for years. There are several great reasons for not prosecuting "residue" cases as felonies. First, when there's less than one-100th of a gram, there's often not enough for defense testing if it's requested (which is why Lykos said she chose that threshold). Before the US Supreme Court strengthened the Confrontation Clause in a series of recent cases led by Justice Scalia, this might have been acceptable. Post Crawford, etc., probably not.

Second, processing crack pipes through the crime lab so you can charge someone with possession wastes valuable crime-lab resources in a division that's already overworked and seriously in need of reform. The Houston PD's crime lab has had so many problems, anything that can be done to take pressure off that bunch is a good thing.

Finally, Lykos' residue policy has been a primary driver in the reduction in state-jail defendants serving time in the county jail, easing overcrowding pressure at a time when that's desperately needed in Harris County. If a new DA went back to Rosenthal-era charging decisions - which were an outlier among large counties for how to handle paraphernalia cases - it would add hundreds, if not ultimately more than a thousand, additional inmates to the jail at any given time. If Anderson won the job and changed just that one policy, county commissioners would literally have to pay to ship all those extra inmates to Louisiana, where the county would be charged on a per diem basis.

In other words, they hung their hat on a policy that, if implemented the way they suggest, would quickly require another county tax hike to pay for overtime, private prison beds, and extra transportation costs. Vote for me and I'll do things to raise your taxes! Not the first message I'd have picked for a GOP primary race against an incumbent, but we'll see.

To Grits, and I think for most rational people, that's just too much taxpayer-funded resources aimed at punishing someone for, say, an empty crack pipe where the only crack in their "possession" is the burned residue on the pipe itself. When you break it down from any cost-benefit standpoint, Lykos made exactly the right call. At least, toward the end, the Chron's coverage of the "no-confidence" vote mentioned that:

Lykos' policy was one long advocated by a majority of Harris County district judges, who have complained their dockets were swamped with minor drug cases instead of more serious cases.

In 2009, 16 district judges signed a letter sent to Gov. Rick Perry asking that he support legislation to lessen the penalties.

Even Murray Newman agreed with Pat Lykos on the crack-pipe policy at the time, and his view of the sitting DA is most akin to portrayals of cartoon or Bond-movie villains. If Newman could agree with his avowed nemesis on the subject (and he disagrees with Lykos on the time of day), that tells you this wasn't an unreasonable stance.

Of all the things they could choose to attack her on, I'm amazed Lykos' opponents chose this one: Something nearly universally praised in public-policy circles, including but not limited to most of Anderson's former Republican colleagues on Harris County District courts, led by Judge Michael McSpadden. I also wonder if it's a great idea for Anderson to so brazenly associate himself with public-employee unions in a GOP primary when public-employee unions have become conservative-movement whipping boys? Further, do you want to be running as the Drug Warrior candidate in an election where the Ron Paul campaign is busily driving voters to the polls?

With police union backing he'll have plenty of money (assuming somebody hasn't gambled it all away), so I suspect Lykos will find Anderson a formidable, well-resourced opponent. The no-confidence vote was enough to get the media's attention. But the underlying basis for it puts Anderson and his inner circle at odds with GOP establishment types in the local judiciary, when there are plenty of issues they could have chosen that wouldn't isolate the challenger from potential allies with every attack. And no one should be proposing more taxes and bigger government in this year's inflamed GOP primary, even in the name of the Drug War.